Nairobi Home Economics Training Centre v African Heritage Ltd

Court of Appeal, at Nairobi

March 28, 1988

Platt Ag JA

Civil Application No 125 of 1985

Extension of time – for filing appeal – registrar’s certificate of delay bearing error on its face – whether such error may be challenged – whether certificate should be sent back to registrar for clarification – Court of Appeal Rules rule 81.

On this application for extension of the time for filing an appeal, the issue arose as to the effect of the registrar’s certificate of delay in furnishing documents necessary for the appeal to the applicant which bore an error on its face. The certificate stated that the applicant’s advocates had been furnished with a certified copy of the relevant ruling and an uncertified copy of the proceedings while in fact what the advocates had received was an uncertified copy of the ruling and a certified copy of the proceedings.

Held:

1. This Court was bound to accept the certificate as prima facie correct, subject to amendment by the registrar and corrections of obvious slips.

2. This was not a case where this Court should send back the certificate of delay to the registrar for clarification as its prima facie correctness was supported by affidavit and the general situation.

3. The record of appeal had been lodged within time.

Application allowed.

Cases

1. Gatti v Shoosmith [1939] 3 All ER 916

2. Patel v EA Cargo Handling Services Limited [1974] EA 75

3. Palata Investments Ltd v Burt and Sinfield [1985] 1 WLR 942; 2 All

ER 517

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order IXA, IXB

2. Court of Appeal Rules (cap 9 Sub Leg) rules 3, 4, 74, 81

Advocates

Mrs J Khaminwa for the Applicant

Mr K A Fraser for the Respondent

Nzoia Sugar Co Ltd v Fungututu

Court of Appeal, at Kisumu December 24, 1986

Platt JA

Civil Application No NAI 104 of 1986

(In an intended appeal from the judgment of the High Court at Kakamega,

Aganyanya J)

Civil Practice and Procedure - applications – interlocutory applications - failure to cite enabling statute in the application - motion omitting to state “Court of Appeal Rules” - effect of such omission – delay in filing appeal caused by misunderstanding between instructing advocates and the instructed advocate – either party claiming likelihood of prejudice – whether time should be extended – Court of Appeal Rules rules 4, 42.

Advocate – instructing of advocate by another – instructions to defend a party - where instructed advocate in distant place – some guidelines in giving such instructions.

A firm of advocates in Nairobi instructed an advocate outside of Nairobi to defend the applicant in a suit filed against it by the respondent in the High Court at Kakamega. The defence failed and judgment was given in favour of the plaintiff/respondent. The instructed advocate informed the firm of advocates in Nairobi of this outcome, stating that copies of the proceedings had been applied for in the event that the firm intended to appeal. However, no notice of appeal was lodged. An exchange of correspondence followed from which it emerged that the Nairobi firm had been under the impression that the instructed advocate would proceed to file an appeal while the advocate, on his part, had chosen not to file the appeal without the express instructions of the firm.

As the time within which to appeal had ran out, the advocate applied for leave to lodge a notice of appeal and a record of appeal out of time, attributing the delay to a genuine misunderstanding between his firm and the Nairobi advocates. The respondent’s advocate opposed the application, arguing that the advocate had no authority to bring it, that the motion failed to specify the legal authority on which it was based and that the court should consider the prejudice to the respondent.

Held:

1. The applicant’s advocate had authority to bring this application as he had been given instructions to file it.

2. Though the motion was stated to be brought “under Rules 4 and 42” without stating “of the Court of Appeal Rules”, rules 4 and 42 could only refer to the Court of Appeal Rules and there was no difficulty which arose out of that omission.

3. There would be prejudice to one side or the other if the application was or was not granted. The prejudice claimed by both sides cancelled each other out.

4. (Obiter) Where a case has been decided against an instructed advocate, it is primarily the duty of the instructing advocates, from whom the authority stems, to give instructions that the instructed advocate should file a notice of appeal.

5. (Obiter) It is the instructed advocate’s duty when getting instructions to know what the client wishes to do if the decision goes against the client. This will enable him to advise on whether an appeal should be lodged but in the meanwhile the appeal process can proceed.

6. (Obiter) Where distances are such that the time for filing an appeal may run out during the exchange of correspondence between the advocates, instructions to prosecute or defend a case should include instructions as to an appeal.

Application allowed.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 4, 5(2)(b), 42

Advocates

Mr Minishi for the Applicant

Mr Nakhone for the Respondent

Wamiti v Wambunyu & 2 others

Court of Appeal, at Nairobi September 18, 1986

Platt JA

Civil Application No NAI 130 of 1986

(In an intended appeal against the judgment of the High Court at

Nairobi, Sachdeva J)

Appeal – extension of time for filing – application for – fraud by applicant’s advocate’s clerk leading to delay in filing application – advocate not filing application within reasonable time of discovering fraud – failure of applicant’s advocate to serve respondent with copy of letter to registrar requesting for proceedings – effect of – whether applicant entitled to extension of time – Court of Appeal Rules rule81(1), (2).

The applicant, who was a party to a suit in the High Court, filed a notice of appeal five days after the judgement was delivered and requested for copies of the proceedings. This request, however, was not served on the respondent’s advocate but the applicant’s advocate nevertheless obtained a certificate for the delay in obtaining the proceedings. The applicant presented some money to his advocate’s firm as fees but this money was misappropriated by a clerk in that firm and the advocate, who was under the impression that the applicant had not paid the fees, did not file an appeal within the time prescribed for doing so. About three months after the fraud by the clerk was discovered, the appellant’s advocate filed an application for leave to lodge the record of appeal within extended.

Held:

1. It was immaterial that the certificate of delay had been acquired by the applicant’s advocate since the failure to serve the respondent with the letter requesting for the proceedings meant that the period of delay in obtaining the proceedings could not be relied on by the applicant, as provided in rule 81(1) and (2) of the Court of Appeal Rules.

2. If an advocate’s clerk is fraudulent and conceals his dealings with a client, there is not much the advocate can do until the fraud is discovered and the period of the fraud cannot be held against the lay client.

3. The applicant’s advocates were at fault for their lack of initiative to put things right after the fraud of their clerk was discovered. It is on the basis of the advocates’ fault that this application should succeed.

Application allowed, advocates to pay the costs personally.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 81(1), (2)

Advocates

Mrs Khaminwa for the Applicant

Mr Ngwiri for the Respondent